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Same Sex: Submissions

By Festival of Light Australia


  1. Just and unjust discrimination

  2. Same sex relationships and international human rights law
  3. Comments on particular legislative provisions
  4. State legislation
  5. References

1. Just and unjust discrimination

Section 1 of the Terms of Reference states:1

The President, Mr John William von Doussa QC, and the Human Rights Commissioner, Mr Graeme Gordon Innes AM, will conduct an inquiry (the Inquiry), on behalf of the Human Rights and Equal Opportunity Commission, into laws regarding financial and employment-related entitlements and benefits to consider the impact of those laws on:

(a) the equal enjoyment of human rights by people who are, or have been, a member of a same-sex couple and any children of a same-sex couple; and

(b) equality of opportunity and treatment in employment or occupation for people who are, or
have been, a member of a same-sex couple.

Section 4 explains the scope of the inquiry as follows:

For the purposes of the Inquiry, ‘laws regarding financial and employment-related entitlements and benefits’ shall be taken to include, but not be limited to, laws relating to taxation, social security, Medicare, concessions available under the Pharmaceutical Benefits Scheme, conditions of employment such as leave entitlements, compensation for workplace injuries, pensions, retirement benefits, superannuation, benefits payable to veterans of the Australian armed forces and intestacy.

The title of this enquiry refers to “same entitlements” and the terms of reference refer to “the equal enjoyment of human rights”. However, it is only in the text of the discussion paper that it is made clear that the “entitlements” which are being used as a benchmark are those given to married couples.

To discriminate is to distinguish or differentiate. Discrimination – the act of distinguishing or

differentiating – is only unjust when it involves treating equal things unequally.

However there are good reasons for society, and therefore also for government, to distinguish marriage from other possible relationships, including heterosexual cohabitation and same-sex relationships, and to privilege marriage over such relationships by bestowing particular benefits only on married couples.

Marriage, as defined in the Marriage Act 1961 at section 5 means “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

There are two key reasons for distinguishing marriage from other relationships and granting it a

privileged status in comparison to other relationships. Firstly, marriage provides the best environment for raising children. Secondly, marriage regulates the relationships between men and women in a way that benefits both men and women and society itself.

1.1 Marriage provides the best environment for raising children

A large body of social science research confirms the near universal belief, across times and cultures, that marriage is the best environment for raising children.

Children flourish best on a range of indicators (including educational outcomes, school misbehaviour, smoking, illegal drugs, and alcohol consumption, sexual activity and teen pregnancy, illegal activities and psychological outcomes) when they are raised by a mother and a father in a publicly committed, lifelong relationship.2

A few examples of particular research findings illustrate this general conclusion.

Three- and four-year-old children with two biological parents are three times less likely than those in any other type of family to have emotional or behavioural problems such as attention deficit disorder or autism.3

Girls whose fathers left the family early (before age 5) were five times more likely in the US and three times more likely in New Zealand to become pregnant as a teenager compared to girls from traditional families.4

Male adolescents in all types of families without a biological father (mother only, mother and stepfather, and other) were more likely to be incarcerated than teens from two-parent homes, even when demographic information was taken into consideration in analyses. Youths who had never lived with their father had the highest odds of being arrested.5

Children’s well-being is adversely affected by being deprived of either a mother or a father. Fathers and mothers make different contributions to a child’s upbringing. Neither can adequately substitute for the other.6

1.2 Marriage regulates the relations of men and women

Marriage socialises men in important ways. Societies with significant numbers of unmarried men

often have significant social problems.

Married men drink less, fight less, and are less likely to engage in criminal activity than their single peers. Married husbands and fathers are significantly more involved and affectionate with their wives and children than men in cohabiting relationships (with and without children). The norms, status rewards, and social support offered to men by marriage all combine to help men walk down the path to adult responsibility.”7

Women also benefit significantly from marriage, including having better mental health outcomes.

When a range of types of mental disorders are considered, marriage reduces the risk of mental
disorders for both men and women.” 8

These social benefits for children, men and women are sufficient grounds for society and
governments to encourage marriage by granting it a unique legal status and bestowing
particular benefits only on married couples.

1.3 Same-sex relationships are not equal to marriage

No matter how intense they may appear to be, same-sex relationships cannot be considered the

equivalent of marriage. They confer none of the unique benefits of marriage and family on Australian society.

In contrast with marriages, same-sex relationships, particularly among men, are highly unstable and rarely monogamous.9 Lesbian relationships, which are generally more stable than those of male homosexuals, suffer an attrition rate of 50% within the first six years.10 This compares unfavourably with the divorce rate for traditionally married couples of less than 50% over an entire lifetime.

Same-sex relationships are naturally sterile. Society has no valid interest in encouraging those in such relationships to procure children through either adoption or reproductive technologies, because these processes necessarily involve a third party biological parent. Whatever means are used to procure a child, the child is intentionally deprived of a genuine parental relationship with either a father or a mother.

A key Australian study has shown significant detrimental outcomes from homosexual parenting. Dr Sotirios Sarantakos, Associate Professor of Sociology at Charles Sturt University, Wagga Wagga, NSW, has done a number of studies on heterosexual and homosexual couples. In 1996 he published a paper, Children in three contexts, where he explored the relationship between family environment and behaviour of primary school children living in three family contexts - married heterosexual couples, cohabiting heterosexual couples and homosexual partners.11

Sarantakos first selected the children of homosexual partners who had been involved in another project on homosexual cohabitation. The children had been born in a previous heterosexual relationship. They were matched with children living in families with married and cohabiting heterosexual parents with similar attributes in terms of education, occupation and socio-economic status. This process resulted in 174 children - 58 in each family type. The “homosexual” families comprised 11 homosexual couples and 47 lesbian couples.

Sarantakos asked teachers to rate the language, mathematical, social studies and sports performance of the children, as well as grading social aspects such as sociability, learning attitude and parental support. He interviewed the children about parental methods of discipline and the degree of freedom the children were allowed in the home.

The major finding of the study was that family type did make a significant difference to the children’s school achievements. Children in families where their biological parents were married to each other scored best of the three groups in language ability (7.7), mathematics (7.9) and sport (8.9). Children of cohabiting heterosexual couple families generally did next best in these areas (6.8, 7.0 and 8.3), while children of homosexual partners scored lowest (5.5, 5.5, 5.9). Social studies was the only exception to this trend – all scores were similar, with children of homosexual partners doing slightly better (7.6) than those of married couples (7.3), who were slightly ahead of children from cohabiting heterosexual families (7.0).

In class behaviour all children rated well, but more children of homosexual partners were reported to be timid and reserved, unwilling to work in a team or talk about family life and holidays. In general they felt “uncomfortable when having to work with students of a sex different from the parent they lived with”. A small minority of “extreme cases” were ridiculed by other children for some personal habits or beliefs or for the sexual preference of their parents. The “sociability” scores for the three groups again showed children of married couple families on top (7.5), followed by cohabiting (6.5) and homosexual (5.0).

Rating of parent-school relationships again showed a difference between the three groups. Sarantakos notes that “while many married couples (particularly mothers) maintained close relationships with schools and teachers, visited school functions and saw the teacher frequently, cohabiting couples did so to a lesser extent.” With homosexual partners, the relationships between parents and school were even weaker – they rarely attended parent teacher meetings or offered volunteer work of any kind.

Rating of parental methods of discipline showed no difference between the groups, but rating of

parental homework support showed married couple families score highest and homosexuals lowest. Children in married couple families also scored highest in parental expectations - they said their parents wanted them to continue school beyond year 10 and had clear future plans. In contrast there was a trend among children of cohabiting and homosexual partner families to want to leave school and get a job - to earn money and establish an independent household as soon as possible. Homosexual partners gave their children more freedom and power at home than any other group, but their children also had to “fend for themselves” by doing housework, washing and cooking more than the others. Married couples cared for and directed their children most.

Sex identity was reported by teachers to be a problem area for some children of homosexual families.  In general, children of homosexual partners were described by teachers as more expressive, more effeminate (irrespective of their gender) and “more confused about their gender” than children of heterosexual couples.

The picture of homosexual parent families painted by the Sarantakos study is one where primary aged children are given great freedom to do whatever they want at home, but also more chores. However the children do not seem to be as happy at school as other children, achieve markedly lower grades in language and maths, and some are confused about their sexual identity. Sarantakos cautiously concludes that “married couples seem to offer the best environment for a child’s social and educational development”. He is at pains to point out that teachers who assessed the children may have been influenced by cultural beliefs and attitudes.

However he does note that parental separation and divorce, long known to be associated with

academic failure in children, is likely to be a major factor in the lower scores of children in both

cohabiting and homosexual partner families. Sarantakos fails to note research showing that homosexual partners break up even more frequently than heterosexual cohabiters, or other research indicating much higher levels of alcoholism and drug abuse in the homosexual and lesbian community compared with the community average. Both these factors could contribute substantially to the relatively poor school performance of children raised by same-sex partners.

Advocates of parenting by homosexual partners frequently claim that about 50 studies have been done “proving” no difference in outcome between children raised by married couples or by homosexual partners. Any social science study depends for its validity on following rigorous statistical and research procedures. Dr Robert Lerner and Dr Althea Nagai, experts in quantitative analysis, after dissecting each of 49 of such studies found at least one fatal research flaw in each study.12 These studies are therefore no basis for good science or good public policy.

Professor Lynn D Wardle shows even from those studies which conclude in favour of homosexual parenting that there is data showing that homosexual parenting may be harmful.13 There is a greater incidence of homosexual orientation in the children raised by homosexual partners with resulting problems including suicidal behaviour, promiscuity, etc. There is also a greater incidence of anxiety, sadness, hostility, defensiveness and inhibitions (some of these especially among boys of lesbian mothers).

2. Same-sex relationships and international human rights law

2.1 The International Covenant on Civil and Political Rights

Nothing in the text of the International Covenant on Civil and Political Rights Covenant makes any explicit reference to homosexuality or sexual orientation, let alone to same-sex relationships.

Some decisions of the Human Rights Committee have claimed to find implicit references in either

Article 2(1) or Article 26. It is instructive that those members of the Committee who infer such

references are divided over whether “sexual orientation” should be read into the word “sex” or into the phrase “other status”.

Neither claim is persuasive or decisive.

In Toonen (488/1992) the Committee confined “itself to noting, however, that in its view the reference to ‘sex’ in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.” The Committee declined to comment on whether “sexual orientation” was included under “other status”.

In Joslin (902/1999) the Committee found that the right to marry under the ICCPR only established a right for a man and woman to marry and that there was no obligation for States to provide for samesex marriage.

In Danning (180/1984) the Committee upheld the right of a State party to discriminate between

married couples and cohabiting couples.

In Young (941/2000) the State party (Australia), because it held that Mr Young was not entitled to the veteran’s dependant’s pension on other grounds, simply failed to address whether denying the pension to the same-sex partners of veterans is reasonable. The individual opinion of Mrs Ruth Wedgwood and Mr Franco DePasquale is worth noting.

“The current case of Edward Young v Australia poses a broader question, where various states
parties may have decided views - namely, whether a state is obliged by the Covenant on Civil and
Political Rights to treat long-term same-sex relationships identically to formal marriages and
"marriage-like" heterosexual unions - here, for the purpose of awarding pension benefits to the
surviving dependants of military service personnel. Writ large, the case opens the general question of positive rights to equal treatment - whether a state must accommodate same-sex relationships on a par with more traditional forms of civil union …

In every real sense, this is not a contested case …

In the instant case, the Committee has not purported to canvas the full array of "reasonable and
objective" arguments that other States and other complainants may offer in the future on these
questions in the same or other contexts as those of Mr Young. In considering individual
communications under the Optional Protocol, the Committee must continue to be mindful of the scope of what it has, and has not, decided in each case.”

It is our view, that for the reasons given above, there are such reasonable and objective grounds for Australia not to grant to same-sex partners the same status and benefits given to married couples.

2.2 Convention on the Rights of the Child

The obligation under Article 2(2) to ensure that the child is protected against all forms of

discrimination on the basis of the status, etc of the child’s parents does not require State parties to give equal treatment to married couples and same-sex partners just because one party to the same-sex relationship has a child.

Article 7 of the Convention establishes the right of the child “to know and be cared for by his or her parents”. There is nothing whatever in the Convention to suggest that this, and other references to “both parents” in Article 9 and elsewhere, mean anything other than the natural meaning, that is, “both father and mother”.

Nothing in the Convention obliges a State party to give any legal or social support to same-sex

households in which children are deprived of their inherent right to know and be cared for by both their father and their mother.

Some State and territory legislation deems the same-sex partner of a woman who gives birth to a child following the use of reproductive technology to be a “parent” of the child, while denying any legal status as a father to the biological father. Such provisions arguably conflict with Article 7 of the Convention. Any action by the Commonwealth Government to give further recognition and benefits to these arrangements would only compound the breach of the Convention.

2.3 Discrimination (Employment and Occupation) Convention 1958

Article 1.1 of this 1958 Convention (also called ILO 111) defines discrimination as follows:

For the purpose of this Convention the term "discrimination" includes:

(a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) Such other distinction, exclusion or preference which has the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation as may be determined by the
Member concerned after consultation with representative employers' and workers' organisations,
where such exist, and with other appropriate bodies.

Neither “sexual preference” nor being a member of a same-sex couple are included in the categories enumerated in Article 1.1 (a). Nor has Australia, as a Member of the International Labour Organisation, made a determination under Article 1.1 (b) to include either “sexual preference” or membership of a same-sex couple as a basis for a distinction, exclusion or preference to which this Convention would apply.

The inclusion of the term “sexual preference”, via the Human Rights and Equal Opportunity

Regulations, in the definition of “discrimination” for all sections other than Part IIB of the Human

Rights and Equal Opportunity Commission Act 1986 does not amount to the making of a

determination under Article 1.1 (b) of the Convention.

In any case, there is a difference between discriminating between individuals on the basis of their
sexual preference and discriminating between (that is treating differently) a person who is married and a person who has a same-sex partner. The prohibition of discrimination against individuals for their sexual preference does not necessarily require treating same-sex partners in the same way as married couples.

Furthermore, Article 5.2 of the Convention specifically allows Members to “determine that other

special measures designed to meet the particular requirements of persons who, for reasons such as …family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.” In maintaining special measures designed to benefit married couples the Commonwealth Government is acknowledging the importance of marriage as the foundation of the family and its unique social and cultural status.

2.4 Conclusion on international law

It is noteworthy that a proposed “Resolution on Human Rights and Sexual Orientation” has been

stalled at the United Nations Human Rights Commission due to the lack of international consensus on this issue.

In conclusion, there is nothing in international law that obliges the Federal Government to give equal treatment to same-sex partners and married couples. The Government is free, as it ought to be, to determine this area of domestic public policy without being bound by any international obligations.

3. Comments on particular legislative provisions

3.1 Paternity leave

Paternity leave is directed at allowing fathers to participate in the birth and early care of their child. It is not a general provision for any person who may wish to attend a birth etc. The Government has no interest in fostering the notion of same-sex partners as “co-parents” as this is not in the best interests of the child. (See Section 1 above)

3.2 Spousal benefits

Because of the importance of marriage in providing the best environment for raising children to

become the next generation of Australians, provisions in Commonwealth legislation which exclude same-sex partners from benefits given to married couples should be retained.

3.3 Interdependency

The Superannuation Industry (Supervision) Act 1993 was amended in 2004 to provide that persons in an “interdependency relationship” were dependants for the purpose of the Act. The definition of an Submission “interdependency relationship” neither explicitly nor implicitly refers to a sexual or marriage-like relationship.

Before extending similar provisions to other legislation, serious consideration should be given as to whether social benefits hitherto limited to married couples should be extended to a far broader range of interdependent relationships. For the reasons given in Section 1 above, society has a particular interest in benefiting married couples. In the case of superannuation, a broader approach to beneficiaries may sometimes be justified.

3.4 Interdependent partner

On the other hand we note that the use of the term “interdependent partner” in Defence Instruction (General) Personnel 53-1 includes a reference to a “bona fide, domestic … relationship”. This phrase implies “marriage like”, that is a relationship including sexual intimacy. This provision should be repealed. Nor should there be an extension of benefits to same-sex partners of senior public servants. There is no reason to bestow such benefits on same-sex relationships.

4. State legislation

To varying degrees and in different ways, Australian states and territories have legislated to give

same-sex partners rights and benefits previously confined to married couples. Such changes

undermine the unique role of marriage in providing the best environment for raising the next

generation of Australians and are counterproductive for the future well-being of our nation.

In particular, the changes to adoption and reproductive technology legislation which have

subordinated the inherent right of a child to have a father and a mother to the pseudo right of same-sex partners to acquire a child, are inimical to the interests of children. The Human Rights and Equal Opportunity Commission could usefully call for the repeal of such provisions and a return to the best interest of the child, including his or her right to a father and a mother (cf Convention on the Rights of the Child Article 7), as the paramount consideration in legislation affecting the child.

5. References

  1. See
  2. Barbara Schneider, Allison Atteberry, and Ann Owens, Family Matters: Family Structure and Child
    Outcomes (Birmingham: Alabama Policy Institute, June 2005)
  3. Coiro, M., Zill, N. & Bloom, B. “Health of our nation’s children. National Center for Health Statistics”

    in Vital Health Statistics, 1994, Vol 10, p 191.

  4. Ellis, B., Bates, J., Dodge, K, Fergusson, D., Horwood, L.J., Pettit, G. & Woodward, L. “Does father

    absence place daughters at special risk for early sexual activity and teenage pregnancy?” in Child Development, 2003, Vol 74, 801-821.

  5. Harper, C., & McLanahan, S. Father absence and youth incarceration (2003: Center for Research on

    Child Wellbeing) Working Paper 99-03.

  6. Bradford Wilcox, “Reconcilable Differences: What Social Sciences Show About the Complementarity of

    the Sexes & Parenting” in Touchstone, Vol 18, Issue 9.

  7. Why Marriage Matters, Second Edition: Twenty-Six Conclusions from the Social Sciences, New York:

    Centre for Marriage and Families, September 2005;

  8. David de Vaus, “Marriage and Mental Health” in Family Matters No.62 Winter 2002, pp 27-32.
  9. Kippax S, Crawford J, Davis M, Rodden P, Dowsett, “Sustaining safe sex: A longitudinal study of

    homosexual men,” in AIDS, 1993, Vol 7, pp 257-263.

  10. Bell, A P and Weinberg, M S, Homosexualities: A Study of Diversity Among Men and Women, (Simon & Schuster: New York, 1978) p 132.
  11. Sarantakos, S, “Children in three contexts” in Children Australia, 1996, Vol 21, No 3.
  12. Lerner, Robert and Nagai, Althea, 2001, “No Basis: What the Studies Don’t Tell Us About Same-Sex
    Parenting,” (Marriage Law Project, Ethics and Public Policy Center, Washington, DC, 2003).
  13. Wardle, Lynn D, 1997, “The Potential Impact of Homosexual Parenting on Children” in University of
    Illinois Law Review, Vol 1997, Issue 3, p 833.